No. 12102 

IN THE SUPKEME COURT OF THE STATE OF MONTANA 

1972 

WILLIAM B. HULL, 

Plaintiff and Appellant, 

-VS - 

NORTH VALLEY HOSPITAL, 

Defendant and Respondent. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert Sykes , Judge presiding. 

Counsel of Record: 

For Appellant : 

McGarvey, Morrison, White & Hedman, Whitefish, 

Montana. 

Frank B. Morrison, Jr. argued, Whitefish, Montana. 

For Respondent: 

Murphy, Robinson, Heckathorn & Phillips, Kalispell, 

Montana. 

I. James Heckathorn argued, Kalispell, Montana. 

AMICUS CURIAE-Montana Hospital Assoc. 

Chadwick Smith argued, Helena, Montana. 

Submitted : February 17, 1972 

Decided : JUH - 9 1972 

Filed: JUN - 9 1972 
Mr. Justice Gene R, Daly delivered the Opinion of the Court. 

This is an appeal from entry of a directed verdict for 

defendant in a negligence action brought by plaintiff William 

B. Hull against defendant North Valley Hospital of Whitefish, 

Montana. The action was brought in the district court of the 

eleventh judicial district, county of Flathead, to recover 

damages for personal injury suffered by plaintiff by reason of 

the negligence of his family physician, while plaintiff was a 

patient in defendant hospital, At the conclusion of plaintiff's 

case, the trial judge sustained defendant's motion to dismiss 

and from that judgment plaintiff appeals. 

The principals involved herein are: North Valley Hospital, 

defendant and respondent, hereinafter referred to as "Hospital"; 

William B. Hull, plaintiff and appellant; Doctor David V, 

Kauffman, William B. ~ull's family physician; the Board of Directors of the Hospital, hereinafter referred to as "Board of 

Directors; and the private physicians practicing in the surrounding area who utilize the Hospital for patient care, hereinafter 

referred to as the "medical staff". 

The Hospital is a private, nonprofit corporation operated 

5y a Board of Directors made up of community volunteers with no 

paid staff of doctors or interns. 

The Hospital on June 13, 1966, adopted bylaws creating a 

hospital structure designed to regulate the conduct of the 

medical staff. It was necessary to create such hospital organization to comply with the standard for hospital accreditation, 

more specifically the Joint Commission on Accreditation of 

Hospitals. In part, those bylaws are: 

MEDICAL STAFF 

TI Section 1. The Board of Directors shall appoint 

a medical and dental staff composed of physicians 

and dentists who are graduates of recognized medical 

or dental schools, legally licensed to practice in 

the State of Montana, a member in good standing in 
the local medical or dental society, and practicing 

in the community or within a reasonable distance 

of the hospital, and shall see that they are organized 

into a responsible administrative unit, and adopt 

such by-laws, rules and regulations for government 

of their practice in the hospital as the Board of 

Directors deem to be the greatest benefit to the 

care of patients within the hospital. In the case 

of the individual patient, the physician or dentist 

duly appointed to the medical staff shall have full 

authority and responsibility for the care of that 

patient subject only to such limitations as the 

Board of Directors may formally impose and to the bylaws, rules and regulations for the medical and dental 

staff adopted by the staff and the Board of Directors. 

"Section 4. In any case where the medical committee 

of the Board of Directors or the Credential Committee 

of the medical staff does not recommend termination 

of appointment, or imposes limitations with respect 

to the exercise of privileges requested, or where 

reduction of privileges is recommended, or a request 

for additional privileges denied, the Credential 

Committee of the medical staff should so notify, in 

writing, the physician concerned. That within ten 

(10) days of receipt of the above notice the physician 

may request, in writing, to the administrator of the 

hospital, reconsideration and, an opportunity to appear 

before the Joint Conference Committee made up of three 

(3) members of the medical staff and three (3) members 

of the Board of Directors. A decision to grant this 

hearing should be made within ten (10) days after the 

receipt of the request by the Joint Conference Committee. 

The Joint Conference Committee shall then, after said 

hearing, make their recommendation to the Board of 

Directors and their decision shall be final." 

"ARTICLE IV COMMITTEES OF THE BOARD OF DIRECTORS 

"Section 4. The Medical Committee shall consist of 

three (3) members of the Board of Directors. 

 his committee shall: 

11 (1) Receive recommendations from the medical 

staff and make final recommendations to the Board of 

Directors on all appointments to, and assignments of 

responsibilities within, the medical staff of the 

hospital. 

"(2) Recommend to the Board of Directors the 

types of professional work to be permitted to be done 

by each member of the medical staff. 

"(3) Recommend to the Board of Directors all 

rules and regulations for the government of the medical 

staff, or amendments thereto, necessary to assure the 

proper care of the patients. 
"(4) Receive and make recommendations to the 

Board of Directors respecting any communications, 

requests or recommendations presented by the medical 

staff through its duly authorized representatives. 

"(5) Together with an equal number of representatives from the medical staff, constitute the 

Joint Conference Committee a liaison group, which, 

with the administrator, will discuss medical administrative matters and be the official point of contact 

among the Board of Directors, administrator, and 

medical staff. 

"(6) Receive and consider all reports on the 

work of the medical staff and make such recommendations to the Board of Directors in respect thereto 

as the committee considers to be the best interests 

of the hospital and its patients. I I 

Within the medical staff itself, there are various committees including: (I) the executive committee consisting of the 

president, vice-president, and secretary of the medical staff; 

and (2) the record review committee which regularly reviews the 

charts of the various doctors. Discrepancies in the charts 

may either be called to the attention of the doctor responsible 

or, in instances requiring further action, the matter may be 

referred to the executive committee. In serious matters, the 

entire medical staff is consulted to decide if the situation 

warrants disciplinary action or restriction of privileges. In 

such cases, the executive committee or the medical staff would 

make formal recommendation to the Board of Directors. 

The ultimate authority for granting revoking privileges 

rests with the Board of Directors. The administrator of the 

Hospital acts as the liaison officer between the medical staff 

and the Board of Directors. Information relative to doctors' 

qualifications to have certain privileges canes from an investigation made by the medical records review committee. Privileges 

extended to doctors practicing in the Hospital, subject to annual 

review before renewal, are: (1) surgical, (2) medical, and (3) 

obstetrical. 

Doctor David V. Kauffman is a licensed physician practicing 

in Whitefish, and during all times pertinent herein was a member 

of the medical staff of the Hospital. Since 1964 or 1965, Dr. 
Kauffman has been the family physician for William B. Hull, 

plaintiff herein, who in July 1969 injured his left knee when 

he tripped over an air hose at his automotive repair shop. On 

July 28, 1969, Hull consulted with Dr. Kauffman who initially 

treated the knee with heat treatments, but after consultation 

with Dr. W. F. Bennett surgery was recommended to repair the 

knee. On August 12, 1969, plaintiff was hospitalized at the 

Hospital, in Whitefish. 

On August 13, 1969, surgery was performed by Dr. Kauffman 

and Dr. Bennett. The operation consisted of removal of cartilage 

from inside the left knee joint. Following surgery, plaintiff 

spent four days in the Hospital and was discharged on August 17. 

Two days later plaintiff returned to Dr. Kauffman's office to 

have surgical stitches removed and pus was then draining from the 

knee. Dr. Kauffman administered penicillin salve to counteract 

the draining. Plaintiff testified at trial that throughout the 

last two weeks of August 1969, Dr. Kauffman administered antibiotics 

which had no apparent effect in improving plaintiff's condition. 

On September 2, 1969, plaintiff was readmitted to the 

Hospital by Dr. Kauffman and X ray on the knee was done by Dr. 

Bennett. Dr. Bennett was listed on the Hospital case records as 

an associate with Dr. Kauffman, and it is conceded in the record 

that Dr. Bennett is competent and skilled. On September 3, Dr. 

Kauffman, unassisted by Dr. Bennett or other medical staff, performed a second operation on plaintiff's knee. This operation 

was termed a "debridement". 

At trial a description of the second operation was given by 

witness Dr. Theodore Sanford as: 

"* ;k Jc the findings: stitch reaction, draining 

infected wound. What was done: the skin wound 

was opened, all of the old stitches removed, debridement of the wound edges. Debridement means 

removal of dead tissue---debridement of wound edges 

and then repaired with number thirty-two wire, 

stainless steel wire. The skin was closed with four 

oh nylon subcutaneous, that's just underneath the 

skin. 7k * *". (Emphasis supplied) 
Witness Sanford further testified that "stitch reactionr' 

as diagnosed by Dr. Kauffman, differed from a general infection 

of the joint, subsequently found to be the correct diagnosis. 

It was established that this misdiagnosis, treatment, or 

lack of proper treatment, eventually caused plaintiff's injuries. 

We find it unnecessary to pursue this matter in detail as plaintiff claims that defendant Hospital is liable in allowing Dr. 

Zbuffman to practice in the Hospital. It is not claimed that 

any employee of Hospital was negligent in the course of treatment 

nor that any relationship exists between Dr. Kauffman and Hospital 

that would make Hospital vicariously liable for his acts. 

Dr. Kauffman's negigence is admitted and the record reflects 

a settlement of plaintiff's claim against him prior to trial of 

the instant case. 

The record discloses that during the 1960's and prior to 

plaintiff's hospitalization at Hospital, Dr. Kauffman had privileges 

reviewed by the heretofore described authorities of Hospital and 

at various times his privileges to do surgery had been revoked and 

then reinstated. On prior occasions Dr. Kauffman had surgical 

privileges with restriction, as was testified to by the Hospital 

administrator, Olga Torgerson. She also stated that Dr. Kauffman's 

privileges to do surgery were restored in 1967, but prior to that 

time he had been limited to minor surgery and Dr. Kauffman had 

acquiesced to such supervision. 

Defendant's motion for a directed verdict was granted for 

the following reasons: 

"1. That there is no statutory duty or obligation on a 

non-profit corporation operating as a hospital to prevent the 

practice of any duly licensed physician and surgeon in Montana. 

"2. That the provisions pertaining to the practice of 

medicine under the statutory authorities and any curtailment 

thereof appears in Title 66, Chapter 10 of the Revised Codes of 

Montana more particularly known as The Medical Practice Act. 
"3. That the restrictions and limitations of practice of 

members of the medical staff of the Defendant, North Valley 

Hospital, is provided by the By-laws and as applied to the evidence submitted in this case shows a complete failure on the part 

of the Plaintiff to establish any duty owed by the hospital to 

the Plaintiff as a patient thereof and any liability resulting 

from such a breach of duty by the hospital to the Plaintiff for 

the following reasons: 

"A. That at the times of the alleged acts of Dr. 

Kauffman, he had full privileges as a member of the staff. 

1 l B, That there was no recommendation as provided 

by the By-Laws for restriction of privileges of Dr. Kauffman 

submitted by the executive committee of the staff to the 

medical committee of the governing body of the hospital. 

11 C. That there is no showing of any receipt of such 

notice or request for hearing before the medical committee 

as more particularly provided for in the said By-Laws. 

"D. That under the By-Laws and duties relating to the 

administrator of the hospital no such duty or obligation 

was imposed upon the administrator or any individual member 

of the Board of Directors, 

"E. That any failure to submit recommendations by the 

credentials committee of the medical staff or the executive 

committee did not impose a duty upon the Board of Directors 

pertaining to the limitation of practice on the part of Dr. 

Kauffman and any liability that might have resulted there- 

. from. I I 

Appellant presents a number of issues on appeal which can be 

reduced to two controlling issues for our discussion: 

1. Was Hospital negligent in permitting Dr. Kauffman to use 

its facilities in ministering to his patients in light of his 

previous record? 
2. Is the medical staff of North Valley Hospital an arm 

of the hospital organization and are the acts or omissions of 

the medical staff acts or omissions of the hospital? 

Appellant states the question of duty as: "* * * whether 

the hospital has a duty to see that surgical privileges are extended to only those doctors who have shown an acceptable degree 

of competency to perform surgery * * *I1 . Further, in view of 

the circumstances of this case, * * whether Dr, Kauffman 

should have been permitted to do this surgery without supervision 

or assistance. 1 I 

By statute, Montana has provided for licensing and supervision of the medical profession under the Medical Practice Act, 

sections 66-1010 through 66-1049, R.C.M. 1947, and responsibility 

for supervision is delegated to the Board of Medical Examiners. 

Section 66-1011, R,C.M. 1947, provides: 

"Purpose of Medical Practice Act. It is hereby 

declared, as a matter of legislative policy in 

the state of Montana, that the practice of medicine 

within the state of Montana is a privilege granted 

by the legislative authority and is not a natural 

right of individuals and that it is deemed necessary, 

as a matter of such policy and in the interests 

of the health, happiness, safety and welfare of the 

people of Montana, to provide laws and provisions 

covering the granting of that privilege and its subsequent use, control and regulation to the end that the 

public shall be properly protected against unprofessional, 

improper, unauthorized and unqualified practice of medicine and to license competent physicians to practice 

medicine and thereby provide for the health needs of the 

people of Montana. 1 I 

Section 66-1013, R,C,M. 1947, creates the Montana State Board 

of Medical Examiners. 

Section 66-1016. R.C,M. 1947, states the policy of super- b I 

vision of physicians for the of the general public of 

the state of Montana: 

"Policy, The board shall maintain reasonable and 

continuing supervision and surveillance over all 

licensees under this act to ensure that such licensees 

maintain standards of conduct and exercise the privileges 

granted hereunder in the greatest public interest and to 

carry out the purposes and provisions of this act, I I 
Section 66-1022, R.C.M. 1947, provides for licensing the 

extent of practice permitted and specifically states how the 

practice of a physician may be limited: 

I I Statement as to practice permitted. The certificates issued shall state the extent and character 

of the practice that is permitted, and shall be in 

the form prescribed by the board. Neither the privileges 

nor the obligations granted to or imposed upon licensees 

may be altered except by legislative enactment or by 

action of the board duly authorized hereunder." 

Respondent Hospital argues that the matter for all practical 

purposes is controlled by statute and the authority to police is 

exclusive with the state. Further, the so-called "Thompson Act", 

sections 94-3557 and 94-3558, R.C.M. 1947, provides a criminal 

penalty if respondent were to attempt to regulate or limit a 

medical doctor. Section 94-3557 provides: 

"Discrimination by hospitals forbidden. Every person, 

persons, corporation or association conducting a hospital or hospitals not held for private or corporate 

profit or a hospital or hospitals that are institutions 

of purely public charity, that exempt themselves or are 

exempted from any state, county or municipal tax by 

reason thereof, shall not in any manner discriminate 

between the patients of any regularly licensed physician 

by reason of the fact that said physician is not a member 

of the medical staff of said hospital, or for any other 

reason, and such hospitals are hereby compelled to admit 

and care for the patients of any regularly licensed 

physician or physicians under the same terms and conditions as may be promulgated by the management oi said 

hospital for the patients of any other regularly licensed 

physician." (Emphasis supplied) 

At the onset, we decline to associate the intent of the 

"Thompson Act" with the problem here. Respondent and Amicus 

Curiae, Montana Hospital Association, rely on the words "for any 

other reason" to support their view, but overlook the language 

that follows to the end of the section. This language clearly 

demonstrates that one set of rules shall apply to all doctors to 

prevent discrimination, whatever the rule. 

In support of his contentions, appellant relies almost entirely on a 1965 decision of the Illinois Supreme Court, Darling 

v. Charleston Comrn. Memorial Hosp., 33 I11.2d 326, 211 N.E.2d 253. 

Appellant argues this is the leading case that establishes the 
the duty owed the patient by the hospital to regulate its staff 

members and that the hospital's bylaws, standards, and regulations define the duty or standard of care owed the patient. 

A close examination of appellant's authority reveals some 

distinguishing differences from the factual situation in the 

instant case. In Darling an 18 year old boy with a broken leg 

was taken to the hospital emergency room and treated by a doctor 

on duty. This doctor was not employed by the plaintiff, but rather 

by the hospital and furnished by the hospital. In other words, 

the doctor in Darling was an employee of the hospital and the 

court's holding c~loaning the hospital's duty to supervise "staff" ' 

doctors is based on respondeat superior and staff doctors there 

should be distinguished from unpaid "staff" doctors in ,Montana, 

This is not too clear from the language of the court in 

Darling, but in a later case in the same jurisdiction, Lundahl v. 

Rockford Memorial Hosp,Assn., 93 Ill.App.2d 461, 235 N.E.2d 671, 

674, wherein the alleged negligence was failure of the hospital 

in its duty to act in requiring consultation and supervision, 

the same court cited Darling and said: 

"The plaintiffs cite the Darling case (ibid) in 

support of their contention that the hospital was 

negligent in its failure to require consultation 

between Dr, Paynter and the members of its staff. 

In the Darling case, however, the treating physician 

was an employee placed by the hospital on emergency 

duty and subject to its supervision. Dr. Paynter was 

not employed by the hospital, was not an agent of it 

and not subject to its supervision." (Emphasis supplie 

Darlin~ also involved hospital care or a shocking lack of 

it by staff and nurses resulting in an 18 year old boy losing his 

leg, Quite obviously Darling has a different fact situation than 

the case before us. 

Appellant also cites a Montana case, Maki v, Murray Hospital, 

91 Mont, 251, 7 P.2d 228, where a delirious and violent patient 

left his bed and fell from a third floor window sustaining injuries. 
In -3 Maki this Court very clearly stated the duty of Dr. Worden, 

the nurses, and the hospital to exercise reasonable skill and 

care in discovering the patient's condition and taking whatever 

action necessary to protect their patient. Yet, here again, we 

have a situation where the hospital employed Dr. Worden and the 

staff full-time, and liability is based on an employer-employee 

relationship as all principals involved were employees of the 

hospital. 

The same problem is present in Foley v. Bishop Clarkson 

Memorial Hospital, 185 Neb, 89, 173 N.W.2d 881 (1970), where 

hospital employees were in violation of the hospital regulations 

and liability was found vicariously through its employees. - Maki 

was cited in Foley as a minority rule, but cannot be said to 

apply beyond respondeat superior cases. It is of further interest 

to note that the Nebraska Supreme Court in Foley quarrels with 

the Darling decision with regard to the standard of care even in 

this class of cases. There the court noted that the duty owed 

is the exercise of that degree of care, skill and diligence used 

by hospitals generally in the community where the hospital is 

located, or in similar communities. This is the majority rule 

and while one may recognize the Darling rule as applying to 

exceptional situations, it is not conclusive of negligence, but 

simply evidence of negligence. There is no question that the 

Nebraska court on the basis of gross failure of "employeesrf to 

observe regulations which cost a patient's life, followed the 

minority rule and ordered a trial. 

The cases cited by appellant from Washington, Florida and 

California are distinguishable on other grounds and we need not 

make further case by case examination. It is only necessary to 

note that in our review of all of the case authority we find 

a good demonstration of the analysis of the various text editors. 

In the Annotation, 69 ALR2d 305, 321, they point out a basic 

fact of definition which is not always made clear as we noted in 
Darling and Lundahl, both authored by the same court. They advise: 

1 "* 9: * the expression a hospital's staff' is somewhat 

ambiguous, since it may conceivably refer to either (1) 

the group - of salaried medical men---interns. residents. 

etc. ---which the hospital employs on a fullLtime basis; 

or (2) those practicing physicians who have been granted 

the right to use the hospital's facilities for their own 

patients * * y:." (Emphasis supplied) 

In the same citation is an involved discussion on the 

application of the doctrine of respondeat superior and its application in finding a hospital negligent for a doctor's malpractice 

occurring in the hospital. It concludes with this general statement at p. 309: 

"Sometimes this determination rests primarily on 

the peculiar facts of individual cases, but there 

are certain general principles in this area that 

should be referred to. In the normal situation where 

a sick or injured person consults his own doctor for 

diagnosis and treatment, and the latter recommends 

hospital care, the hospital to which the patient is 

admitted is not liable for the doctor's misconduct 

resulting in injury to the patient, even though such 

misconduct takes place at the hospital, and even 

though certain other links between the hospital and 

the doctor, such as the circumstance that the latter 

is on the former's 'staff,' may exist. 

"On the other hand, when a person is taken directly 

to a hospital, as where he is rendered unconscious 

in an accident, and a physician hired by the hospital, 

such as an intern or resident, is guilty of malpractice 

in diagnosing or treating such person's condition, a 

different situation arises, Such a physician usually 

stands in a position with respect to the hospital 

which, under the normal tests of the existence of the 

master-sewant relationship, would call for a ruling 

that he was the hospital's servant. In other words, 

such a doctor is normally paid a salary by the hospital, 

he spends all his working hours under the direction 

of the hospital's staff, he does not maintain a practice 

of his own, etc., and the result would normally be, and 

not infrequently is, that the physician must be regarded 

as a servant or agent of the hospital." 

The same princi-ple is stated another way in 41 C.J.S. 

Hospitals, 5 8, p. 346: 

"Liability of a private hospital for the negligent 

acts of the members of its professional staff must 

be predicated on the doctrine of respondeat superior, 

Accordingly, a private hospital is not responsible 

for any default on the part of a physician or surgeon 

who practices his profession as an independent agent, 

and, where a patient employs a physician or surgeon 

not in the employ of the hospital, the hospital is not 

I I liable for his negligence. See also 40 Am Jur 2d, 

Hospitals & Asylums, 5 28. 
The authorities offered all concern the duty to supervise 

or require consultation on a specific case that constituted malpractice by a doctor or hospital personnel with liability being 

established under the doctrine of respondeat superior. No 

authority has been cited that extends this duty to the case of 

an independent contractor. Further, there is no authority cited 

that even discusses the real point in issue here ---- Is the 

Hospital negligent under the ordinary rules of negligence for 

not limiting or expelling the doctor before the fact of the case 

of malpractice, and excluding any reference to the malpractice 

itself except in damages? A11 the citations might reasonably be 

construed to establish a standard of care, and are certainly not 

in point with this case on negligence or duty. However, can the 

standards discussed heretofore in the case of a doctor employed 

by the hospital in a specific malpractice case be imposed on a 

hospital in the long term of before the fact regulation of independent staff doctors? 

At the risk of belabored definition, the integration of a 

modem hospital becomes readily apparent as the various boards, 

reviewing committees, and designation of privileges are found 

to rest on a structure designed to control, supervise, and review 

the work within the hospital. The standards of hospital accreditation, the state licensing regulations, and the respondent's 

bylaws demonstrate that the medical profession and other responsible 

authorities regard it as both desirable and feasible that a 

hospital assume certain responsibilities for the care of the 

patient. 

Therefore, being presented with a direct negligence issue 

which preexists the damage complained of here, and if we were to 

recognize the standard of care suggested by appellant which departs from the majority rule and considers a violation of the 

hospital bylaws as evidence of negligence, then we could not 

circumvent the bylaw procedures and find negligence on a vicarious 
basis as suggested in issue No. 2, nor could we find negligence 

based on the majority rule of "community standard". 

Assuming that the Board of Directors of the hospital entity 

has a duty to "act" when put on notice or advised by the medical 

section that a doctor is incompetent to continue to practice 

medicine, the law recognizes that this determination must be 

made by medical personnel skilled in medical sciences and competent 

to make this determination. In this case that was not done by 

the medical section or communicated to the proper Hospital authority. 

Kauffman's prior limitation and reinstatement in 1967, cannot be 

considered as negligence on this record, which fails to reveal 

facts at that hearing that would constitute improper procedures 

by the Board of Directors or that it acted contrary to medical 

advice. 

Extensive testimony was given at trial by Dr. Buchanan and 

Dr. Sanford who were, or had been at the time of the origin of 

this action, members of the medical staff of Hospital. In that 

testimony a record of violations of Hospital rules, regulations, 

and procedures was recited regarding Dr. Kauffman's record 

keeping which at various times was the subject of numerous discussions in medical staff meetings. Dr. Kauffman had been given 

several admonitions concerning the deficiencies in his record 

and 

kesping/after adamant promises by Dr. Kauffman to keep up his 

records and observe the rules of Hospital, he was given the 

privilege of continuing, and held full privileges at the times 

pertinent here. 

The record insofar as the Hospital is concerned, demonstrates 

an effort to supervise the quality of medical practice within 

the Hospital. Additionally, Hospital's records did indicate that 

Dr. Bennett was on the case with Dr. Kauffman and even though not 

present at the second surgical procedure did participate during 

the post-operative care. 
The question of whether or not a hospital can limit a 

medical license under the statute is not particularly relevant. 

This power has been reserved by statute to the Board of Medical 

Examiners and is remedial only. If a duty to "act" were found 

and a doctor would not voluntarily comply, a formal complaint 

to the Board of Medical Examiners would satisfy that duty. 

Concurrent with the testimony of Drs. Buchanan and Sanford, 

objections were sustained regarding their professional opinions 

of Dr. Kauffman's competence to practice, along with several 

denials of offers of proof made by appellant, similar in nature. 

The court sustained the objections and denied the offers on the 

basis of relevancy. Although the testimony was relevant to 

liabilities of Dr. Kauffman, it was not deemed relevant to the 

liabilities of Hospital. We agree for the same reasons. Knowledge 

within these doctors' minds, uncomrnunicated to the Board, is not 

a demonstration of knowledge of the Board as a matter of law, 

only a matter of conscience of the individual doctors. 

While not necessary to sustain this Opinion, the matter of 

proximate cause was argued. We will note that in a direct 

negligence suit of this type not based on respondeat superior, 

the additional burden of the negligence being the proximate 

cause of the injury is presented and judged by the standards 

approved by this Court, the evidence produced in this record 

fails in that regard. Sztaba v. Great Northern Railway, 147 Mont. 

The judgment of the trial court is aAfirmed. 

Associate Justice 
/ /chief Justice 

/ \~ssociate Justices 

Jack Shanstrom, District Judge, 

for Justice Wesley Castles.